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03/03/88 TERESA L. LATHER v. JOSEPH A. BERG

Filed: March 3, 1988.

TERESA L. LATHER, ADMINISTRATRIX OF THE ESTATE OF ROBERT J. LATHER, II, DECEASED, APPELLANT (PLAINTIFF),
v.
JOSEPH A. BERG, AND RONALD J. BAILEY, APPELLEES (DEFENDANTS).



Appeal from the Howard Superior Court No. 1, The Honorable Dennis H. Parry, Judge, Cause No. 24530

Buchanan, J., Shields, P.j. Concurs. Sullivan, J. Concurs.

Author: Buchanan

BUCHANAN, J.

CASE SUMMARY

Plaintiff-appellant Teresa Lather [hereinafter referred to as Administratrix], as administratrix of the estate of her husband, Indiana State Police Officer Robert J. Lather (Robert), appeals a summary judgment entered in favor of defendants-appellees Joseph Berg (Berg) and Ronald Joseph Bailey (Bailey), claiming that genuine issues of material fact exist as to whether Berg or Bailey furnished alcohol or marijuana to Keith Murphy (Murphy), a minor, whether Berg and Bailey negligently entrusted Murphy's own car to him, whether Berg or Bailey negligently performed a gratuitously assumed duty, and whether Berg negligently forced Murphy to leave Berg's premises knowing Murphy would drive while intoxicated.

We affirm.

FACTS

This being an appeal from a summary judgment, we view the facts in a manner most favorable to the non-moving party, the Administratrix.

In the early morning hours of July 6, 1982, Murphy left a party at Berg's home in a drunken rage. He drove through Kokomo at speeds in excess of one hundred miles per hour until he crashed into Robert's patrol car. Robert died of his injuries.

Murphy, Berg, Bailey, and Christina Weitzel (Christina), Murphy's girlfriend, had been drinking together at Berg's home since approximately 10:00 p.m. on July 5. All four were seventeen years old. The gathering began in the early afternoon with a swim in a creek near the home of Bailey's brother. Bailey had consumed approximately one half pint of whiskey from a partially depleted half gallon bottle by the time the others arrived. After a swim, Berg and Bailey invited Murphy to go to Berg's house and drink with them. Murphy agreed. The three devised a plan to ask Daryl Habel (Habel), Berg's uncle, to buy liquor for them. Bailey loaned Murphy twenty dollars so that Murphy could pay for the liquor without having to drive across town to cash a check. Murphy drove Berg and Christina to Habel's home where Berg asked Habel, an adult, to buy the liquor for them, which he agreed to do. Murphy then drove Habel and the others to a liquor store where Habel used the twenty dollars to purchase a fifth of Seagram's Seven for Berg, Bailey, and Murphy, and a six-pack of Malt Duck for Christina (Habel is not a party to this appeal).

After the purchase of the alcohol, Murphy returned Habel to his abode and drove the others to Berg's house without stopping to cash a check. When they arrived, Bailey was waiting at the house with the remnant of his half gallon bottle of whiskey. Berg poured Murphy's first drink; thereafter, Murphy poured his own drinks or drank straight from the Seagram's bottle. For the most part, Berg and Murphy shared the Seagram's, and Bailey drank the whiskey from his half gallon bottle. By the end of the evening, both bottles were empty. Murphy, Berg, and Bailey also smoked marijuana, supplied either by Berg or by Bailey.

Shortly before Murphy's 11:00 p.m. curfew, Murphy announced his intention to drive home and asked Christina to go with him. She refused. Christina had ridden with Murphy many times in the months they had been dating and she knew him to be a poor driver when sober and a dangerous one when drunk. She observed that he was stumbling and that his speech was slurred and concluded that he was too drunk to drive. When Murphy called his mother on the telephone to explain that he would be late, Christina shouted into the telephone that Murphy was drunk. Murphy shoved her away and hung up the telephone without telling his mother where he was. The two began to argue; Christina trying to persuade Murphy to stay, and Murphy trying to persuade Christina to leave with him. Murphy continued to drink. Once, Christina got up to leave with him, but she became angry when he refused to let her drink in the car and she threw her drink in his face. Murphy then drove down the alley, but returned for her. The argument continued outside, now including Berg and Bailey. Murphy became angry with Berg and threw his car keys on the grass. Christina picked them up. Murphy grabbed her arm and twisted it to get the keys out of her hand, but Berg stopped him. Christina gave the keys to Berg who, in turn, gave them to Bailey, who stuck them in his pocket. Bailey said later he did not want Murphy to have the keys to drive "[b]ecause he wasn't walking too good, and I didn't want him to hurt nobody, and neither did Joe Berg." Record at 212.

Murphy was furious because his friends had taken his keys and because Christina would not leave with him. Berg and others, including Murphy's parents, had confiscated his keys in the past, so Murphy had several sets made. Although his friends did not know if he had another set that night, Murphy testified without contradiction that he did have an extra set of keys and that he could have left at any time. Murphy claimed that he stayed at Berg's home not because his friends had his keys, but because he wanted Christina to leave with him. As the argument progressed, Murphy became increasingly angry and abusive. He accused Berg and Bailey of planning to rape Christina. Berg offered to take Murphy home, but Murphy refused. Berg's attempts to reason with him failed, and the two wrestled on the ground outside.

Finally, sometime after midnight, Berg lost all patience with Murphy and told him to "get the hell out." Record at 382. Bailey also became angered by Murphy's continuing personal irrational invective and threw Murphy's keys at him, telling him if he wanted to leave so much he could go. Christina protested, but Murphy picked up the keys and drove away, his car spewing gravel and narrowly missing a mailbox. Bailey and Berg left immediately to drive Christina home. Murphy drove a few blocks, then returned to Berg's house. When he found his friends had left, he drove away, drunk and angry.

At approximately 2:00 a.m., after a high-speed police chase through Kokomo, Murphy crashed into Robert's patrol car and killed him. Murphy's blood alcohol content after the accident registered .12. The results of a blood test for drugs other than marijuana were negative; no test was performed which would detect the presence of marijuana in Murphy's body.

Murphy was convicted of reckless homicide and sentenced to five years' probation. Habel pled guilty to two counts of furnishing alcohol to a minor and served three and one-half months of a six-month sentence.

On March 29, 1983, Administratrix filed suit[Footnote 1] against Berg and Bailey for their roles in the events leading to Robert's death. On July 23, 1984, after the trial court heard oral argument and after the parties submitted briefs on the motion, the trial court granted summary judgment in favor of Berg and Bailey and made the following findings of fact and Conclusions of law:

"Findings of Fact

1. Defendant Joseph A. Berg did not furnish alcohol to co-defendant Keith A. Murphy.

2. Defendant Joseph A. Berg had possession of a set of car keys belonging to Keith A. Murphy for an unknown period of time in the hours immediately preceding the collision which gives rise to this cause of action.

3. Defendant Joseph A. Berg received the aforementioned keys from co-defendant Chris Weitzel and turned over said keys to co-defendant Ronald Bailey.

Conclusions of Law

1. Defendant Joseph A. Berg cannot be said to have 'furnished' alcohol to co-defendant Keith A. Murphy in any sense which would give rise to liability for negligence under Indiana law.

2. Defendant Joseph A. Berg cannot be said to have assumed a duty to control co-defendant Keith A. Murphy.

3. Joseph A. Berg cannot be said to have had any right to control the actions of Keith A. Murphy, the automobile of Keith A. Murphy, or the car keys of Keith A. Murphy.

4. Even had defendant Joseph A. Berg assumed a duty to control the actions of co-defendant Keith A. Murphy or the automobile or keys of co-defendant Keith A. Murphy, there is no showing of reliance on the part of claimant sufficient to give rise to a cause of action [f]or any alleged breach of such duty."

Record at 636-37. Although the language quoted here refers only to Berg, the trial court stated elsewhere that it also granted summary judgment for Bailey for the reasons set forth in these findings of fact and Conclusions of law. This appeal ensued.

ISSUES

Administratrix presents five issues, herein restated, for our consideration:

1. Does a genuine issue of material fact exist as to whether Berg or Bailey furnished alcohol to Murphy, a minor?

2. Does a genuine issue of material fact exist as to whether Berg or Bailey delivered marijuana to Murphy?

3. Can either Berg or Bailey be liable for negligent entrustment to Murphy of a motor vehicle that they neither owned nor had a right to control?

4. Can Berg or Bailey be liable for negligent performance of a gratuitously assumed duty?

5. Was Berg negligent in directing Murphy to leave the premises?

The parties have not raised, so we do not consider, the applicability of the fireman's rule to the Administratrix's derivative claim. The fireman's rule "provides that professionals, whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity." Koehn v. Devereaux (1986), Ind.App., 495 N.E.2d 211, 215.

DECISION

INTRODUCTION

Administratrix has asserted various theories in support of her request that Berg and Bailey be held liable for damages arising from Murphy's collision with Robert. Before turning to our examination of these theories, it is well to recall that unless a plaintiff shows an affirmative act of misconduct by a defendant, negligence arising from nonfeasance must be premised on a special relationship between the parties. See Ember v. B.F.D. (1986), Ind.App., 490 N.E.2d 764; see generally Prosser and Keeton on the Law of Torts § 56 (W. Keeton 5th ed. 1984). As we have observed elsewhere regarding what duty is required for the protection of others, Indiana courts "have shown great reluctance to require an individual to take any action to control a third party when there is no special relationship between them." Sports, Inc. v. Gilbert (1982), Ind.App., 431 N.E.2d 534, 538, trans. denied. Restatement (Second) of Torts § 315 (1965) sets forth the general rule as follows:

"There is no duty so to control the conduct of a third person as to prevent him from causing ...


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